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IDEM’s Proposed CFR Update Rule to Incorporate Boiler MACT and CISWI Rules

On Sept. 14, 2011, the Indiana Department of Environmental Management released for public notice its Findings of Amendments to Rules Concerning References to the Code of Federal Regulations in the Indiana Register.

The rule proposes to update several CFR references from the 2010 edition of the CFR to the 2011 edition. The rulemaking has been brought in accordance with Indiana’s expedited rulemaking code, which allows for only one public notice period and then allows IDEM to proceed straight to final adoption. Although IDEM’s Office of Air Quality updates its CFR references annually, this year’s proposed rule is a bit different because it includes incorporation of both the Final National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers (Boiler MACT), and the Final New Source Performance Standards for Commercial and Industrial Solid Waste Incineration (CISWI) Units, along with the U.S. EPA’s delay of the effective dates for both these rules.

IDEM does not appear to be under any pressing obligation to incorporate these stayed rules which are expected to change. In fact, the same day the EPA published these rules, it also issued a notice to reconsider both of the rules. On May 18, 2011, the EPA then stayed the effective dates of both rules pursuant to Section 705 of the Administrative Procedures Act. IDEM has proposed to incorporate both of these rules utilizing the expedited rulemaking procedures, despite the U.S. EPA’s statements in its Final Delay of Effective Dates Notice that “we believe the public did not have a sufficient opportunity to comment on certain revisions EPA made to the proposed rules.” Because IDEM has the capability of carving out portions of the 2011 CFR during incorporation, it is curious why it did not choose to carve out these two controversial rules and wait for U.S. EPA to make its revisions to them. If you have questions about this or related issues, please contact the Environmental and Natural Resources Practice Group at Bingham Greenebaum Doll.

To learn more about Jennifer Kahney Thompson and her practice, visit her profile.

  • Partner

    Jennifer is a partner in the firm's Environmental and Natural Resources Practice Group. She has practiced environmental law for over twenty years with experience both in the public and private sector. She provides environmental ...

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